To Ban or not to Ban: A Constitutional Conversation

In the time since the executive order restricting entry to nationals of seven countries (referred to as the “Travel Ban” in this article) has been signed, reams of paper have been devoted to discussing whether it is constitutional or even moral. Given the vastly different analyses of the Travel Ban, it is no wonder that people are confused and have simply defaulted to whatever partisan source they favor. I too struggle with the information overload. As a law student, though, the best way I can make sense of the governmental activities is within a legal framework, bolstered by my Lexis password and my Constitutional Law casebook.

In this article, I intend to have a conversation regarding the constitutionality of the Travel Ban. I will attempt to do so in as nonpartisan a manner as possible, discussing only constitutional law as it stands now, not what it should or should not be. Ultimately, as the law stands, the Travel Ban is very possibly unconstitutional, though the question will ultimately be decided by the Court in the coming months.

The best place to start, before wading into the marsh of arguments for and against, is by reading the executive order in full. Please take a few moments to do so here before continuing.

“The legislation quoted by the President allows the President to enact and enforce this ban.”

That legislation would allow the President broad authority to create the ban if Congress had not spoken on this issue.

The legislation in question is the Immigration and Nationality Act (INA) from 1952: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” 8 U.S.C. §1182(f). This does seem to grant the President broad powers in the area of US entry. However, the President’s powers are not as broad as they may at first appear. To understand why, we must look to the jurisprudence surrounding the balance of powers between the executive and the legislative branches.

Broadly speaking, the legislative branch alone has the ability to make laws; the executive branch may only carry them out. Justice Jackson’s concurrence in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring), establishes a functional three-category rule (later accepted by the Court) to determine whether any given action by the President stands on solid constitutional ground. In category 1, the President has express or implied authorization for his actions from the constitution or a statute, providing a very strong presumption of constitutionality. In category 2, Congress and the President both have the authority to take action but Congress has not acted. Whether the President’s actions in this category are constitutional “depends on imperatives of events and contemporary imponderables rather than abstract theories of law.” Id. In category 3, the President can only rely on his executive power without the legislative power. Should Congress pass a law, the President must follow that law. Thus, there can be concurrent power between branches, but, if there is a conflict, Congress wins.

We must then determine which category this Travel Ban fits into. One might argue that it fits into category 1, since the President is explicitly citing an act of Congress in enacting his order. However, the 1965 INA does state “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” 8 U.S.C. §1152(a). Congress here has explicitly said that, in enacting its law, the executive branch may not discriminate based on someone’s nationality. This takes the executive order out of the realm of categories 1 and 2 and puts it into category 3.

“But it does not matter what Congress says because the Travel Ban relates to foreign affairs, over which the President has exclusive authority.”

The President does not have exclusive power over all international affairs, but the President does have broader powers when dealing with international affairs, United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936), and this is an international affair. This idea is also addressed in the more recent Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015), which discussed a conflict regarding the recognition of foreign states. In that case, the Court sided with the President, finding that the President had exclusive authority to recognize foreign governments due to the nation’s need to “speak with one voice.” However, it is unlikely that the Court, Congress, or even the President would find that the nation has the need to “speak with one voice” in regards to immigration or entry. Immigration, although it touches on international issues, also deals with domestic affairs. Once foreign nationals are within US borders, their actions fall within the physical jurisdiction of the US and relate to domestic affairs directly. Thus, Congress has time and again exercised its power to create laws relating to immigration and entry and the Court has found these laws constitutional. In this area, Congress and the President have concurrent authority, fitting the Travel Ban back into Justice Jackson’s categories. Then, because Congress has spoken, the President is bound to follow the laws it has created, putting the order into the shaky grounds of category 3.

“But the Travel Ban fits into category 3, since the 1965 act does not directly abrogate the section of the 1952 act cited in the order and Congress itself discriminates in 8 U.S. Code § 1187(a)(12) based on national origin.”

While it is true that the 1965 act does not repeal the section cited in the order and that Congress discriminates in following legislation, this does not necessarily follow that the Travel Ban is expressly authorized by Congress. In 8 U.S.C. §1187, Congress is evidently concerned with countries with a history of harboring or supporting terrorist activities. However, the concerns of Congress in that specific provision are not being met by the Travel Ban. It is an unarguable fact that no deadly terrorist attacks have been carried out by nationals of the countries banned. While some non-deadly attacks have occurred, the majority of all terrorist attacks have been carried out by US citizens and nationals of other countries not banned. Additionally, Congresspersons McCain and Graham have expressed apprehension that the Travel Ban may be doing more to contribute to terrorist activities than prevent them. When taking the surrounding facts into consideration, it would appear that there is at least a question whether the Travel Ban has been expressly authorized by Congress. This is an issue that will be considered and ultimately resolved by the Court.

“But the Court has no place in deciding these issues.”

The Court has reserved a place for itself, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and provides a check on Congressional and Presidential overreach. The Court will indeed not decide questions regarding policy under the political question doctrine. However, the Court decided in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), that it has a key role to play in international affairs where life, liberty, or property of individuals are involved, as they are certainly here. “Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.” Id. Although Hamdi was a US citizen, the Court still may involve itself here, because non-citizens do have due process rights. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886); Zadvydas v. Davis, 533 U.S. 678, 693 (2001); Plyler v. Doe, 457 U.S. 202 (1982). Given that Hamdi was decided in relation to the President’s war powers, which are broader than other international powers, the Court’s power to review executive acts applies a fortiori with the Travel Ban, which is unrelated to Congressionally authorized war.

Ultimately, the answer to the question of whether the Travel Ban is constitutional or illegal is the standard lawyer’s answer: “it depends.” It depends on whether the Court thinks the restriction of US entry is of exclusive executive concern. It depends on whether Congress acts to abrogate the 1965 act preventing discrimination based on nationality or country of origin. It depends on whether the Court believes that Congress expressly authorized the Travel Ban by its own discrimination in 8 U.S.C. §1187 or whether the President is acting in category 2. Reasonable minds will differ on many issues regarding the Travel Ban, whether it constitute good international or domestic policy or whether it is moral. But the constitutionality of the Travel Ban, likely unconstitutional as the law currently stands, will be decided by the Court.

Special thanks to Alexis Halsell and Erika Sexson for assisting with research.

Rachel Augsburger is in her second year at Chicago-Kent College of Law. She has contributed with research and editing to a variety of academic publications, including work at Oxford University Press. She graduated cum laude from Wheaton College in 2012 with a BA in English Literature. When she is not reading casebooks or writing outlines, she enjoys baking and bike riding.